Court: Court of Appeals for the Fifth Circuit; April 17, 2002; Federal Appellate Court
Ismael Holguin Herrera, along with several co-defendants, was indicted on June 21, 2000, for conspiracy to distribute over 500 grams of cocaine from 1986 to December 9, 1999, violating 21 U.S.C. §§ 841(a)(1) and 846. Additionally, Herrera and co-defendant Jesus Lucero were charged with aiding and abetting possession with intent to distribute cocaine, and Herrera faced a separate charge for unlawfully possessing firearms while being an unlawful user of a controlled substance, violating 18 U.S.C. § 922(g)(3). Following a jury trial, Herrera was convicted on all counts and sentenced on November 3, 2000, to 78 months' imprisonment on each count, served concurrently, along with supervised release.
Background details include Herrera's naturalization as a U.S. citizen after being born in Chihuahua, Mexico, and his work as a paralegal at the Herrera Law Firm in Odessa, Texas. Undercover agent Rick 'Ignacio' Lopez had multiple interactions with Herrera and his relatives, leading to drug purchases and revealing a connection to cocaine distribution within the Herrera family. Notably, intercepted phone conversations indicated coordination between Herrera and his co-defendants regarding cocaine transactions, with specific references to drug quantities and deals.
An undercover officer, Sergeant Teofilo Garcia, Jr., was introduced to Lucero by Lopez, who presented Garcia as his cousin Thomas. On July 2, 1999, Garcia negotiated the purchase of three ounces of cocaine for $2,100, which was successfully completed. A subsequent negotiation occurred at Milo's Restaurant where Garcia sought to buy one kilogram of cocaine. Lucero quoted a price of $19,000, which Garcia deemed excessive. Simultaneously, a person named 'Lalo' approached Ismael at the Herrera Law Firm, offering him a kilogram of cocaine for distribution, which Ismael declined. However, Lucero later received Lalo's pager number from Ismael and arranged a meeting with him at Milo's, indicating to Ismael that he had an undercover agent coming to facilitate a drug deal.
During an intercepted conversation, Ismael appeared to encourage Lucero to engage with Lalo, although he claimed he was trying to prevent a drug transaction. At their meeting, Lalo requested partial payment for the cocaine, which Lucero and Ismael could not provide, leading them to ask Lalo to front the drugs. Despite Ismael's assertions that he intended to prevent the deal, Lucero later attempted to convince Lalo to front the cocaine again during a brief visit to Lalo's motel. Lalo ultimately left town without making the sale. On July 13, 1999, Garcia met with Lucero again at Milo's and purchased three ounces of cocaine, with Lucero indicating he would follow up about the kilogram sale.
On July 16, 1999, Lucero communicated with Ismael about difficulties in obtaining a kilogram of cocaine from their supplier, Sergio Juarez. Ismael confirmed his awareness of Juarez's role as their supplier and mentioned he would meet Juarez at the Gardendale ranch that Sunday. Ismael had a history of cocaine use over the past ten years, claiming abstinence since August 1999. In December 1999, trace cocaine particulates were found in Ismael's vehicle, though the source was unclear. Ismael also possessed three functional firearms, which had all traveled in interstate commerce.
The document discusses the sufficiency of evidence supporting Ismael's conspiracy conviction under Count 1 for distributing over 500 grams of cocaine. The court reviews the evidence favorably towards the government and assesses whether a reasonable jury could find the essential elements of the offense proven beyond a reasonable doubt. The government must demonstrate: 1) an agreement to violate narcotics laws, 2) knowledge and intent to join the conspiracy by each conspirator, and 3) voluntary participation. Tacit agreements and circumstantial evidence can suffice to establish a conspiracy. Ismael argues that the government did not prove his knowledge of the conspiracy, suggesting the evidence was insufficient for a conviction. However, prior cases cited by Ismael involved scenarios where evidence was minimal, mainly associating him with the crime without further corroboration.
Evidence indicated that Ismael engaged in discussions about a drug deal involving cocaine, accompanying co-conspirator Lucero to Milo's for this purpose. Lucero testified that Ismael was aware of the cocaine involvement and actively participated in the events. Ismael acknowledged his presence at Milo's, claiming he intended to disrupt the deal rather than facilitate it. The jury, however, was not convinced by Ismael's defense, and there was sufficient evidence to uphold their verdict on Count 14, which charged him with the attempt to possess over 500 grams of cocaine with intent to distribute.
To convict under 21 U.S.C. § 846, the defendant must show both the requisite culpability for the underlying crime and that their conduct constituted a substantial step towards its commission. Ismael argued that no substantial step occurred since no money or drugs changed hands; however, the attempt to have Lalo 'front' the cocaine undermined this claim. If successful, this would have resulted in actual possession rather than an attempt.
Regarding the alleged variance between the indictment and trial proof, a defendant must demonstrate a discrepancy that affected their substantial rights. The jury's determination of whether one or multiple conspiracies existed hinges on factors such as common goals and participant overlap. A reversal for variance requires proof of multiple conspiracies and that this variance affected substantial rights. Even if multiple conspiracies were proven, if the indictment specified a single conspiracy and the government demonstrated the defendant's involvement in at least one, no substantial rights were violated. Ismael's argument for insufficient evidence of a conspiracy was dismissed as the jury had ample evidence to support their finding.
The government established Ismael's involvement in at least one conspiracy, specifically an attempted drug deal at Milo's restaurant, negating his claim that his substantial rights were affected. Ismael challenges the sufficiency of evidence supporting his guilty verdict for Count 16, which involves possession of a firearm while being an unlawful user or addict of controlled substances, in violation of 18 U.S.C. § 922(g)(3). This statute prohibits individuals classified as unlawful users or addicts of controlled substances from possessing firearms. The indictment asserts that on December 9, 1999, Ismael, identified as an unlawful user and addict, possessed multiple firearms that had traveled in interstate commerce.
To secure a guilty verdict, the jury needed to find beyond a reasonable doubt that Ismael was either an unlawful user or an addict, with unanimous agreement required on this point. Definitions are provided: an addict is someone who habitually uses narcotic drugs in a way that endangers public welfare and has lost self-control, while 'user' is defined by common understanding. Ismael contends that the government did not present evidence of his addiction or drug use after August 1999, arguing that this failure undermines the proximity requirement to the alleged offense date.
Before assessing the evidence's sufficiency, it is crucial to interpret the phrase "is an unlawful user of or addicted to any controlled substance," considering the statute's text, structure, legislative history, and relevant case law. The court previously addressed vagueness in similar statutes, highlighting that the application of § 922(g)(3) was upheld when evidence of drug possession and usage was presented alongside firearm possession.
The Court in Edwards did not define the terms 'unlawful user' or 'addict' under the relevant statute, as the defendant's status was clear. Other cases have upheld convictions without precise definitions when evidence demonstrated the defendant's status as such, but they required proof that the defendant was an 'unlawful user' or addicted during firearm possession. For instance, in United States v. McIntosh, the court upheld a conviction where the defendant admitted addiction and possessed controlled substances during his arrest. Some courts differentiate between present and past drug use, with the Tenth Circuit in United States v. Reed indicating that the statute applies to current users, not past users, although it remanded the case for further consideration. The Ninth Circuit noted that infrequent past drug use might raise vagueness challenges to the 'unlawful user' language, yet upheld a conviction based on evidence of recent drug use. The requirement under 922(g)(3) is that the government must prove the defendant regularly used drugs over time and contemporaneously with firearm possession. While it does not necessitate the defendant to possess a firearm during drug use, the individual must be an unlawful user. Lacking clarity from case law, the terms are interpreted by their ordinary meanings, with 'unlawful' defined as not authorized by law or illegal. Federal law does not criminalize drug use per se, as possession and distribution are the focus of legality. Ultimately, it is suggested that neither Congress nor states may criminalize the status of being a drug user, referencing Supreme Court precedent.
The term 'unlawful' in the context of firearm possession is interpreted to pertain specifically to 'moral turpitude.' Definitions from Webster's dictionary clarify that a 'user' refers to someone who consumes alcoholic beverages or narcotics, while the Controlled Substances Act defines an 'addict' as an individual who habitually uses narcotics in a manner that endangers public morals, health, safety, or welfare, or who has lost self-control over their addiction. The statute requires that possession of firearms must coincide with the status of being an 'unlawful user' or 'addict.'
While the term 'addict' is clearly defined, 'unlawful user' is less straightforward. The common understanding of 'user' could apply broadly to anyone using narcotics, but the inclusion of 'unlawful' necessitates further examination. The legislative history of Section 922 provides insight; initially, the statute did not address drug use when enacted in 1968, focusing instead on prohibiting felons and individuals under indictment from firearm possession. Subsequent amendments introduced provisions against unlawful users and addicts of controlled substances, emphasizing Congress's intent to prevent firearms from reaching individuals deemed risky to society. The Supreme Court has reiterated that Congress aimed to broadly restrict firearm access to those who may pose a threat, underscoring the necessity of evaluating both statutory language and legislative intent.
The Second Circuit emphasized that the Gun Control Act aims to prevent firearm ownership by individuals deemed 'mentally unstable' or 'irresponsible,' primarily to keep firearms from dangerous individuals. The court found limited information on the enactment of § 922(g)(3), noting only a vague Senate Report indicating Congress's intent to restrict access to firearms for those with criminal backgrounds, incompetence, or youth. When statutory ambiguity persists, the rule of lenity is applicable, requiring a narrow interpretation in favor of the defendant. This principle mandates that doubts about the scope of criminal statutes, particularly where there is reasonable uncertainty after reviewing the text, legislative history, and policies, should be resolved in the defendant's favor. The court concluded that an 'unlawful user' refers to someone whose narcotic use is frequent and excessive enough to compromise self-control without reaching the level of addiction, aligning with the Controlled Substances Act's definition.
Upon reviewing the evidence against Ismael Herrera, the court noted that the government did not argue he was 'addicted' to controlled substances during the relevant period. While Herrera admitted to drug use and firearm possession, the critical issue was whether he qualified as an 'unlawful user.' The evidence was evaluated favorably towards the jury's verdict, focusing on the distinction between general drug use and the specific legal definition of 'unlawful user.'
Jesus Lucero testified that he observed Ismael using cocaine about twice a month and occasionally provided him small amounts. He noted that Ismael did not use cocaine while at work and attempted to quit in August 1999 but was unsuccessful. Lucero had not used cocaine with Ismael since March 1999 and had seen a gun in Ismael's car. Aaron Herrera reported seeing Ismael use cocaine a few times at parties and suspected he used it at work, although he had never witnessed it there. He had used cocaine with Ismael approximately three times and recalled seeing a gun in Ismael's briefcase. Rick Aranda stated he observed Ismael use cocaine once or twice at work and had given him cocaine upon request. He noted that cocaine was used at parties held by Jesse Herrera, which Ismael rarely attended. Aranda had not seen Ismael since his termination in November 1998 and believed Ismael had been successful in quitting cocaine.
Ismael Herrera admitted to being an occasional cocaine user, primarily on weekends, and claimed he had not used cocaine since August 1999 following his sister's death. He acknowledged possessing several firearms during his cocaine use and admitted to using cocaine at work, varying from one gram every two to three weeks in 1998 to one gram weekly in 1999 prior to quitting. The only additional evidence presented was cocaine particulates found in his car. Notably, no testimony indicated that Ismael's cocaine use posed a danger to others or affected his self-control. The court concluded that the evidence did not establish Ismael as an 'unlawful user' under the relevant statutory definition. Consequently, the jury had insufficient evidence to convict Ismael on Count 16, and the court found sufficient evidence for convictions on Counts 1 and 14, dismissing concerns of variance regarding Count 1.
Count 16 against Ismael Herrera was reversed due to insufficient evidence proving he was an "unlawful user" of narcotics, while his convictions for Counts 1 and 14 were affirmed. The ruling emphasized that the evidence did not demonstrate regular or extended drug use, which is necessary for a conviction under 18 U.S.C. 922(g)(3). The excerpt references the legal interpretation of "user," noting that mere possession of firearms by a narcotics user does not automatically imply danger or incompetence. It also discusses the Supreme Court's stance in Robinson v. California, where penalizing addiction itself was deemed unconstitutional. Dissenting Judge Duplantier concurred with the majority except regarding Count 16, arguing that the term "unlawful user" should not be seen as ambiguous and does not require narrow construction.
Defendant's testimony indicates he was a drug user while possessing firearms, yet the majority concludes he was not classified as an "unlawful user." However, drug use inherently involves possession of the controlled substance, making his drug use unlawful under Title 21 U.S.C. § 844. This statute deems it illegal for a person to knowingly possess a controlled substance unless exempted by specific circumstances. Congress intended for individuals who unlawfully use controlled substances to be prohibited from possessing firearms due to potential impaired judgment and societal risk, regardless of the frequency of their drug use. The term "unlawful user" was defined to exclude those using drugs legally, such as through a prescription.
Evidence supports the jury's conclusion that the defendant knowingly possessed firearms while being an unlawful user of a controlled substance. The key issue is whether there is adequate evidence to show that the defendant unlawfully used drugs and possessed a firearm around the time specified in the indictment (December 9, 1999). The government is not required to demonstrate the exact date of the offense, as the precise timing is not an essential element of the charge. Evidence showing the offense occurred reasonably near the indictment date suffices, especially if it falls within the statute of limitations. The evidence indicates the defendant possessed firearms while unlawfully using drugs within several months of the indictment date, supporting the conviction on Count 16.
